We state the material facts
consistently with the board's findings.� Sisco v. Quicker Recovery, 218
Or App 376, 378, 180 P3d 46 (2008).� When he was injured, claimant worked in
employer's warehouse.� Employer had a written rule prohibiting "[f]ighting
or threatening violence in the workplace."� A report written by the
warehouse manager after claimant was injured states, "All warehouse
employees know that there is a no tolerance policy for violence in the
workplace in or on the property."

Claimant was injured in a fight with
a coworker, Griffin.� The hostility between claimant and Griffin was initially
unrelated to their employment.� It began as a dispute that they had in
claimant's home, where Griffin had stayed for a few days.� However, the
hostility followed them into the workplace and was fueled by their work relationship,
particularly after Griffin was promoted to a position in which he directed
claimant in some of his job duties.�

One evening, as claimant was leaving
work, he found Griffin waiting for him near his truck in employer's parking
lot.� Griffin told claimant that he was tired of claimant trying to take his
job.� A confrontation ensued, and the two began fighting.� In the fight,
claimant sustained injuries including a fractured hand.� Both men were fired
the next day.

Claimant filed a workers' compensation
claim for his injuries from the fight.� Employer's insurer, SAIF, denied the
claim.� After a hearing on the claim, the administrative law judge (ALJ)
concluded that the injuries were compensable and set aside SAIF's denial.� SAIF
requested board review of the ALJ's order.� SAIF argued that the claim should
be denied under ORS 656.005(7)(b)(A), which provides that a compensable injury
does not include an "[i]njury to any active participant in assaults or
combats which are not connected to the job assignment and which amount to a
deviation from customary duties[.]"� SAIF also argued that claimant's
injuries did not "arise out of and in the course of" his employment
and thus were not compensable injuries under ORS 656.005(7)(a).�

The board stated that it did not need
to decide whether claimant's injuries were excluded from compensability under
ORS 656.005(7)(b)(A), because it was not persuaded that the claim satisfied the
requirements for compensability under ORS 656.005(7)(a).� It concluded that the
injuries did arise out of claimant's employment, given that the conflict
between the two men was fueled by Griffin's position directing claimant in his
work duties.� However, it concluded that the injuries did not occur in the
course of claimant's employment.� After noting that employer had a rule against
fighting, the board reasoned as follows:

"A violation of an employment rule does not
render a claim per se noncompensable.� Instead, the focus is on whether
the claimant was engaged in an activity that was within the boundaries of his
ultimate work.� Andrews [v.Tektronix, Inc., 323 Or 154, 166, 915
P2d 972 (1996)].�Additional relevant factors include 'the degree of
connection between what the worker is authorized to do and is forbidden to do,
the degree of judgment and latitude normally given the worker, workplace
customs and practices, the relative risk to the worker when compared to the
benefit to the employer, and the like.'� Id. at 165.

"Claimant's job duties included loading and
unloading mattresses from trucks to the warehouse, labeling products, filling
orders for customer pick-up, and cleaning the warehouse.� He was not
'authorized' to fight as part of his work duties.� To the contrary, as noted
above, the employer had a rule prohibiting fighting and threatening violence in
general.� Claimant's manager had also instructed claimant and Griffin not to
fight.

"In addition, fighting put claimant at
considerable risk of injury while the employer did not benefit from his
altercation with Griffin in the parking lot.� Finally, the record does not
support a finding that it was part of the workplace 'custom and practice' to
participate in such physical altercations.� In light of the foregoing, we find
that the fight was beyond the bounds of claimant's ultimate work, and not
within the course of employment."

(Record citations omitted.)� The board went on the note that

"claimant acted contrary to his job responsibilities
when he disobeyed a directive of the employer not to fight with Griffin.�
Claimant's actions, namely, actively fighting with Griffin in the parking lot,
were 'more than a violation of a regulation or prohibition relating to the
method of accomplishing his work.'� Claimant acted against the employer's
benefit and specific directive."

Based on those factors, the board concluded that claimant's
injuries are not compensable, and it reinstated SAIF's denial of his claim.�
Claimant now seeks review of the board's order.

Claimant makes two assignments of
error, which we address in turn.� In the first, he argues that the board erred
in considering the fact that he was fighting in determining whether his
injuries occurred in the course of his employment.� Claimant relies on ORS
656.005(7)(b)(A), which provides:

"(b) 'Compensable injury' does not include:

"(A) Injury to any active participant in
assaults or combats which are not connected to the job assignment and which
amount to a deviation from customary duties[.]"

As we understand his argument, claimant takes the position
that ORS 656.005(7)(b)(A) defines the only circumstances under which injuries
resulting from assaults or combats are not compensable.� He therefore contends
that it is inappropriate to consider the fact that he was fighting with Griffin
for purposes of determining whether he was acting outside the boundaries of his
ultimate work when he was injured.� According to claimant, the legislature has
"occupied the field" in terms of determining whether injuries caused
by combats are compensable.� He contends that an employer should not be able to
further restrict the compensability of such injuries by relying on rules
against fighting to assert that an injured employee was acting outside the
scope of employment, even if the injury would not be excluded from
compensability under ORS 656.005(7)(b)(A).� Thus, in claimant's view, the
analysis of the "in the course of" and "arising out of"
elements of the work-connection test under ORS 656.005(7)(a) should not include
any consideration of the "combat" issue.

SAIF responds, first, that claimant's
argument is unpreserved.� On the merits, it contends that ORS 656.005(7)(a)
provides the primary definition of compensability, that the various exclusions
in ORS 656.005(7)(b) provide additional, independent bases for finding an
injury noncompensable, and that there is no inconsistency in considering
workplace fights under both provisions.

We agree with SAIF's contention that
the assignment of error is unpreserved.� Claimant contends that the issue did
not arise until the board issued its order, in which it failed to consider the
exclusion from compensability of combats and assaults under ORS
656.005(7)(b)(A) in determining whether claimant was injured in the course of
his employment.� He argues, therefore, that preservation principles do not
preclude him from raising the issue in this court.� We disagree.� SAIF argued
in its opening brief to the board that claimant was injured while engaged in a
prohibited activity--fighting--outside the boundaries of his ultimate work and,
thus, that his claim is not compensable.� Claimant responded that the
"prohibited activity" analysis is inapplicable, albeit not for the
reason that he now asserts.� Rather, he argued that there was no evidence that
he was aware of the rule, that he was not "in the workplace" when the
injuries occurred, and that he had not been fighting.� In short, the question
whether employer's rule against fighting placed the injury-producing activity
outside the course of claimant's employment did not arise for the first time
when the board issued its order.� Claimant's argument to the contrary is not
well taken.� We decline to consider his first assignment of error and,
consequently, proceed with the assumption that the board properly considered
the fact that claimant was fighting in determining whether he was injured in
the course of his employment.

Claimant's argument that substantial
evidence does not support the board's finding that he was violating employer's
rule against fighting when he was injured requires little discussion.�
"Substantial evidence exists to support a finding of fact when the record,
viewed as a whole, would permit a reasonable person to make that
finding."� ORS 183.482(8)(c).� Even if we were to accept claimant's
interpretation of employer's written rule prohibiting fighting "in the
workplace," the record includes a written report made by the manager at
the warehouse after claimant was injured.� The report states, "All
warehouse employees know that there is a no tolerance policy for violence in
the workplace inor on the property."� (Emphasis added.)� In
our view, in light of that statement, a reasonable person could find that the
rule against fighting extended to the entire premises, including the parking
lot, not just to the warehouse in which claimant actually performed his job
duties.

We turn finally to claimant's argument
that his injuries are compensable under the "parking lot" rule.�
Under that rule, "injuries sustained on the employer's premises while the
worker is going to or coming from work have a sufficient work-connection to be
considered to have occurred 'in the course of' employment."� Fred
Meyer, Inc. v. Hayes, 325 Or 592, 597-98, 943 P2d 197 (1997).� Claimant
notes that the board found that fighting was not part of his work duties or of
a workplace custom or practice and that fighting put claimant at risk without
benefitting employer, and it thus concluded that he was acting "beyond the
bounds of [his] ultimate work, and not within the course of [his]
employment."� Claimant contends that, because he was injured in the
parking lot after work, not while performing a work task, there is no point in
considering whether he was acting outside the boundaries defining his ultimate
work.� We agree that, under the circumstances, the factors that aid in
determining whether a claimant was engaged in work activities are inapposite,
but that conclusion does not advance claimant's position.

As the Supreme Court stated in Hayes,
an injury takes place in the course of employment if it occurs "while the
worker reasonably is fulfilling the duties of the employment or is doing
something reasonably incidental to it."� 325 Or at 598 (emphasis
added).� The court noted that "'[i]n the course of' employment also
includes a reasonable period of time after work for the worker to leave the
employer's premises, including the employer's parking lot."� Id.�
It went on to explain that "reasonably incidental to" employment
includes "activities that are personal in nature--such as a telephone call
home or a brief visit with a coworker--as long as the conduct bears some
reasonable relationship to the employment and is expressly or impliedly allowed
by the employer."� Id. at 598-99.�

The fact that an injury occurs in the
employer's parking lot does not exempt it from the requirement that the injury
occur "while the worker reasonably is fulfilling the duties of the
employment or is doing something reasonably incidental to it."� The
"parking lot" rule does not stand for the proposition that any
activity engaged in by an employee in the employer's parking lot when leaving
work occurs in the course of employment.

In this case, the board found that
claimant was injured while engaged in an activity that employer expressly
prohibited, and substantial evidence supports that finding.� It follows that
the activity was not reasonably incidental to claimant's employment and that
the "parking lot" rule does not apply.� Because claimant was not
"fulfilling the duties of the employment or * * * doing something
reasonably incidental to it," his injuries did not occur in the course of
his employment.� Accordingly, they are not compensable.

Affirmed.

1.Claimant also
argues that the board erred in even considering whether his injuries occurred
in the course of his employment, contending that SAIF conceded that issue
before the ALJ and, thus, that it was not properly before the board.� Claimant
did not argue to the board that the issue was not properly before it, so we
decline to consider the argument as it is unpreserved.

2.Cf. Andrews,
323 Or at 163-65 (addressing the proper analysis of the "in the course of"
inquiry where the claimant has violated an express employer directive while
acting within the "boundaries defining [the claimant's] ultimate
work"); Sisco, 218 Or App 382-86 (same).